I couldn’t help but chuckle at Tom Giovanetti’s post today concerning his inability to back up his favorite shows from his PVR, which crashed last night. As he laments:
The problem is, we have been using the PVR to record 2 years worth of a Spanish language curriculum that is broadcast over an educational channel, and we’ve been using this content to teach our son Spanish. Now the curriculum is gone. It’s not like I’m just inconvenienced in not being able to watch my “24” episodes. An educational curriculum is lost.
For those who aren’t familiar with Mr. Giovanetti’s work, he’s a frequent and pugnacious commentator on intellectual property issues, and an avowed supporter of the DMCA and digital rights management technologies. He’s a frequent critic of “IP skeptics” and “commonists” who argue that copyright law–and the technological measures designed to protect copyright–have gone overboard.
Today he discovered that sometimes, technological measures designed to deter piracy are a pain in the ass for ordinary consumers–like him.
Here’s a radical proposition: Mr. Giovanetti should be permitted to make a backup copy of the television programs on his PVR, as long as his use of that mateiral stays within the bounds of copyright law.* Moreover, someone else should be permitted to sell him a device allowing him to do so. And finally–here’s the truly radical part–it should be legal to manufacture such a device without getting a license from Dish to do so.
That’s precisely what HR 1201, Rep. Boucher’s DMCA-reform legislation, would permit. Giovanetti’s organization published a paper by Prof. Richard Epstein cricizing Boucher’s bill. Epstein wrote that there “isn’t much of a case” for reforming the DMCA.
I’m not sure what to think about all of this. We DMCA critics find it awfully frustrating when DMCA proponents paint anyone who wants to circumvent DRM as amoral hackers bent on undermining all copyright. Yet Giovanetti (perhaps without realizing it) has just discovered that he, too, would like to circumvent a DRM scheme for a perfectly legitimate purpose. Yet any company building the backup hard drive he seeks would probably be guilty of a felony under the DMCA.
I hope this incident will lead him to take the concerns of DMCA critics–who are inconvenienced by DRM in situations quite analogous to his own–more seriously.
* It’s worth mentioning that Mr. Giovanetti was probably breaking the letter of the law by keeping an entire season of copyrighted television shows on his PVR, as the Supreme Court’s ruling that “time shifting” was fair use was based on the assumption that the content would be viewed once and then erased. But let’s assume, for the sake of argument, that his library of educational programming is in fact a fair use.